Employers Prohibited from Demanding Access to Social Media Pages of Job Applicants and Employees

 

Employers can’t demand user names or passwords to access the social media of employees or job applicants under legislation signed September 27 by Gov. Jerry Brown.

The measure is a rare area of agreement for labor unions and employers winning support from the California Labor Federation and the California Chamber of Commerce, which saw the bill as clarifying a murky aspect of employee law.

“Social media is a developing area of the law,” said Jennifer Barrera, a lobbyist for the state chamber. “The boundaries on what you can and cannot investigate haven’t really been made clear.”

The Democratic governor touted the measure – AB 1844 by Assemblywoman Nora Campos, a San Jose Democrat – as a way “to protect all Californians from unwarranted invasions of their personal social media accounts.”

Use of social media in the workplace intersects with a number of hot-button issues including free speech, harassment, discrimination and hiring.

Although numerous privacy and discrimination protections exist for California employees, state law has been silent on the appropriate use of information contained on social media sites.

For the past 18 months, however, the National Labor Relations Board has issued reports and – earlier in September – an official ruling restricting employers from broadly censoring posts by employees on Facebook and other social media sites even if critical of the employer.

Employees in union and non-union businesses who discuss improving work conditions or increasing pay are protected from retaliation under the National Labor Relations Act.

Instead of around the water cooler, “nowadays, that … conversation might take place on Facebook, Twitter or some other social media outlet,” writes the chamber in a 2011 publication, “Making Sense of Social Media in the Workplace.”

The chamber’s HRWatchdog has more information about social media developments in the workplace.

Among the employer policies considered unlawful by the labor relations board in a May report  – encouraging employees to talk through concerns with management or co-workers instead of posting complaints on-line; not talking to the media about the employer and not making “disparaging or defamatory” comments.

These prohibitions, the board said, were policies that would “reasonably tend to chill employees” in actions allowed under the labor relations act.

The board ruled on September 7 that a Costco policy prohibiting electronically posted statements that “damage the company, defame any individual or damage any person’s reputation” was too sweeping.

Part of the genesis of the Campos’ bill is a 2010 incident in Maryland – that ultimately led to legislation similar to that signed by Brown – in which applicants for jobs at the state Department of Corrections were asked in interviews to log into their social media accounts and let the interviewer watch while the applicant clicked through friends, posts and photos.

California law prohibits employers from discriminating against or firing an employee based on lawful conduct outside the workplace. Employees are also protected from harassment by management or co-workers and retaliation for reporting such harassment or discrimination.

The new law only curtails the ability of employers or potential employers to demand access to site information that’s protected.

Whatever is on a publically accessible social media page is fair game.

But even accessing that information can be fraught with potential problems.

California law prevents employers from asking job applicants, for example, their age or if they’re pregnant or married as well as a variety of other “personal” details that the law says cannot factor into hiring decisions.

But what if an employer learns any or all of that information at LinkedIn or Facebook or Twitter and subsequently decides not to hire that applicant?

Even if the decision was based on other factors, the employer could then face a potential legal challenge for being in possession of that protected information when making a decision on hiring, according to Barrera.

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